>Bovard: How Washington Protects Your Privacy And Liberty

Preserving trust in government is the highest good—at least for politicians. To create that trust, government continually spawns façades to make people believe their rights are safe. Few things better illustrate this charade than the Privacy and Civil Liberties Oversight Board.

In 2004, three years after the Patriot Act was enacted, politicians started to worry about the rising number of Americans grumbling about government intrusions. The 9/11 Commission proposed creating “a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.” Creating another office within the executive branch to report on executive branch activities was unlikely to produce anything more than extra jobs for Washington hangers-on. The White House edited the 9/11 commission’s report before it was publicly released, so the Bush team had no trouble with this toothless-tiger palliative.

In December 2004, acting on the commission’s recommendation, Congress mandated the creation of the Privacy and Civil Liberties Oversight Board. The same law that created the oversight board also made it easier for the FBI to get eavesdropping warrants on Americans, created a new standard to make it easier to prosecute citizens who donate to foreign charities of which the U.S. government disapproves, and provided a new layer of secrecy for federal agencies.

Some congressmen hailed the board as the start of a brave new era. Things would be different since there was a new sheriff in Washington—or at least that was what people were supposed to think. The civil liberties developments in the years after the board was created offer profound lessons into how the government works.

It would have been difficult to design a better rubber stamp than the Privacy and Civil Liberties Oversight Board. It had no subpoena power, so it was effectively obliged to accept unsubstantiated assertions from the agencies violating privacy and liberty. The president had the right to appoint board members and could fire them any time. Bush did not appoint any experts on civil liberties; instead, the board was stacked with Republicans who formerly held government positions as enforcement zealots. And the first appointments did not occur until seven months after the law passed. The American Bar Association noted that Bush’s nominations were timed “as part of the administration’s push to encourage Congress to reauthorize provisions of the USA Patriot Act that expire within the next few months.” The oversight board supposedly guaranteed that Patriot Act powers would not be abused.

Six months after Bush stacked the board, the biggest civil liberties expose of recent decades exploded on the front page of the New York Times. The prior year, when he was running for reelection, Bush assured Americans that no wiretaps were occurring without federal court authorization…***